Tuesday, March 22, 2005

Terri's 14th Amendment Rights Are Being Violated

In a post at NRO's The Corner this morning, O. Carter Snead, general counsel for the President's Council on Bioethics, says that the federal judge's ruling this morning violates Terri's fourteenth amendment right to due process:
The state of Florida, through its judiciary, has ordered the termination of Terri Schiavo's life. This is an interest clearly protected by the due process clause of the 14th Amendment. Thus, before Florida can order such action, it must accord Schiavo with the full measure of process that is due to her. Unfortunately, a review of the record shows that such process was never provided...

...The procedural irregularities that tainted the handling of Ms. Schiavo's case include:
The court's failure to appoint a guardian ad litem (following 1998);
The court's usurpation of the guardian's role (in direct violation of Florida law)...

These irregularities make it impossible to conclude that T. Schiavo's wishes under the present circumstances were proven by "clear and convincing" evidence, particularly in light of the presumption (under Florida law) that she would have chosen to receive life sustaining treatment...

And, most importantly for present purposes, it empowers the federal court to determine, DE NOVO, "any claim of a violation of any right of T. Schiavo within the scope of this Act, NOTWITHSTANDNG ANY PRIOR STATE COURT DETERMINATION AND REGARDLESS OF WHETHER SUCH A CLAIM HAS PREVIOUSLY BEEN RAISED, CONSIDERED, OR DECIDED IN STATE COURT PROCEEDINGS."

Thus, its seems highly improper for the federal court to determine on the basis of a two hour hearing that the Schindler family would not likely be successful on the merits in an entirely new trial, complete with extensive discovery, etc.

The law passed was intended to give Terri a de novo hearing — that is, one which would re-open all the issues of the case for consideration. It would seem that once again a judge is attempting to frustrate the intent of a duly elected legislature.